JUDGMENT 1. - Heard learned counsel for the appellant as well as Public Prosecutor and perused the record. The crux of evidence which has resulted in conviction of appellant Nand Lal under Section 302 Indian Penal Code for committing murder of one Pratap son of Jagmal Ram is that according to prosecution at about 10 P.M. on 3rd July, 1998, a quarrel took place between Nand Lal accused and the Pratap deceased in connection with the amount demanded by Nand Lal from said Pratap. It was alleged that Nand Lal, who carries on a tea shop near the flour mill of one Mohan Singh, has made a demand of Rs. 600/- against deceased Pratap, which was due in his account. Whereas the Pratap was saying that he has already paid Rs. 300/- and remaining amount shall be paid to him afterwards to which Nand Lal was not agreeable and that resulted into a scuffle between the two. The complainant Sumer Singh son of Mala Ram is also cousin of deceased Pratap and another Mahaveer separated Nand Lal and Pratap. On separation the said Nand Lal went to the house of Sattar Manihar and returned with a 'lathi' and gave a blow on head of Pratap. As a result of the said blow Pratap fell down and became unconscious and he was taken to hospital, Churu, where he died. About this incident Sumer Singh lodged a written FIR. The written complaint was delivered to SHO at Churu Hospital at about 5 P.M. as per the endorsement on said written complaint when the proceedings regarding postmortem was going on. However the same was registered at Police Station at 9 P.M. on that date. 2. The death of Pratap was homicidal which was proved as a result of the post-mortem report. According to which the injury which was caused on the head resulted in fracture of the skull bone which has resulted in death of Pratap. P.W. 1 Sumer Singh, P.W. 2 Mahaveer Singh, P.W. 3 Sita Ram and P.W. Mala Ram have all supported the prosecution case as eye-witnesses that blow of 'lathi' was caused by Nand Lal in the said scuffle referred to above. 3. Relying on the statement of eyewitnesses and the sworn testimony of P.W. 9 Dr. P.W. 1 Sumer Singh, P.W. 2 Mahaveer Singh, P.W. 3 Sita Ram and P.W. Mala Ram have all supported the prosecution case as eye-witnesses that blow of 'lathi' was caused by Nand Lal in the said scuffle referred to above. 3. Relying on the statement of eyewitnesses and the sworn testimony of P.W. 9 Dr. Satyapal, trial court found that the appellant Nand Lal was guilty for offence under Section 302 Indian Penal Code and awarded the sentence of life imprisonment with a fine of Rs. 250/- and in default of payment of fine the accused was further directed to undergo three months simple imprisonment. 4. Mr. Garg learned counsel for the appellant has contended that from the prosecution evidence itself and other material placed on the record including the FIR the prosecution does not make out a case of murder against the appellant. It was urged that the injury was not caused with any sharp weapon to put any bodily harm to cause death of Pratap. It was a case even according to prosecution in which death has caused following a sudden quarrel which has taken place at the tea shop on account of settling some amount between Nand Lal and deceased, and as a result of which Nand Lal has given a single blow of 'lathi' on the head of deceased Pratap, which injury resulted in his death. He urged that the prosecution case does not travel beyond Part II of Section 304 Indian Penal Code and conviction cannot be held under Section 302 Indian Penal Code. 5. Learned Public Prosecutor urged that the offence of appellant has been proved beyond reasonable doubt from sworn testimony of P.W. 1, P.W. 2, P.W. 3 and P.W. 4 who all are eyewitnesses and though it is a case of single blow but it was such a forceful blow but that fact that the quarrelling Pratap and accused have been separated, appellant immediately after scuffle returned with a 'lathi' and gave a blow over the head of deceased leaves no room of doubt that it was injury which was inflicted with intention to cause death of Pratap. He also referred that single injury has been attributed on most vital part of the body i.e., head. 6. Having gone through the contentions and examining the record, we agree with the contentions submitted by the learned counsel for the appellant. He also referred that single injury has been attributed on most vital part of the body i.e., head. 6. Having gone through the contentions and examining the record, we agree with the contentions submitted by the learned counsel for the appellant. Admittedly there was no previous enmity which could justify inference of any premeditation for causing any bodily injury by Nand Lal on person of deceased Pratap. The information of dispute at the first time has been submitted to S.H.O. at 5.00 P.M. at Hospital Churu. According to first information submitted by Sumer Singh at the time of occurrence he was sitting on a platform with his cousin Pratap son of Jagmal Ram and Nandlal. The accused was standing nearby and was talking about the accounts between them regarding tea supplies at this shop. Nand Lal was saying that Rs. 600/- are due to him whereas the Pratap denying the demand said that he has already paid Rs. 300/- and remaining amount shall be paid to him afterwards to which Nand Lal was not agreeable and that dispute escalated into a scuffle between the two. While complainant Sumer Singh son of Mala Ram and another Mahaveer son of Deepa Ram separated Nand Lal and Pratap, the said Nand Lal went to the house of Sattar Manihar and returned with a 'lathi' and gave a blow on the head of Pratap. As a result of the said blow Pratap fell down and became unconscious and he was taken to hospital, Churu, where he died. This stage of happening is fully established by the prosecution during trial. The only embellishment that has occurred in basic prosecution case during trial is important that has been sought to be made over this very first version by witnesses, particularly by those whose presence was not mentioned in FIR at all, by attributing a second blow to the accused. This stage of happening is fully established by the prosecution during trial. The only embellishment that has occurred in basic prosecution case during trial is important that has been sought to be made over this very first version by witnesses, particularly by those whose presence was not mentioned in FIR at all, by attributing a second blow to the accused. Sumer Singh in addition to reiterate what he submitted his written report added that Nand Lal tried to give a second blow which was blocked by Sumer Singh and Mahaveer.Statement of Sumer Singh which is consistent with the occurrence and the injury which has been caused on a person and gives a clear indication that the scuffle and beating on the head of Nand Lal was part of the same continuous transaction and there was no intermediary time on which there may be a room for giving considerable thought about the next action taken by the person, while settling account at tea shop. P.W. 2 Mahaveer who has been named in F.I.R. fully corroborates the statement of Sumer Singh about the initiation of dispute between accused and the deceased and also about bringing a 'lathi' from the house of Sattar Manihar. However, he has improved upon his statement given during the course of investigation by stating that on returning with a 'laths' he gave a blow from the back on the head of the deceased and tried to give a second blow but he was blocked by them. This story has been repeated by P.W. 3 and P.W. 4. Their presence do not find place in first version of Sumar Singh in F.I.R. and nor their intervention has been suggested in the scuffle between the deceased and accused, notwithstanding that Sita Ram is real brother of complainant Sumer Singh, and Mala Ram but also of the same community. It cannot also be ignored that apart from these witnesses no other witnesses of the shops around have come over to support the case of the prosecution in any manner. We are of the opinion that while it has been established beyond reasonable doubt that death of Pratap was caused due to 'lathi' blow 'inflicted by Nandlal, intention to cause death cannot be imputed to Nand Lal. We are of the opinion that while it has been established beyond reasonable doubt that death of Pratap was caused due to 'lathi' blow 'inflicted by Nandlal, intention to cause death cannot be imputed to Nand Lal. The case does not travel beyond causing such injury by Nand Lal about which he can be attributed with knowledge that if the injury is caused on the vital part, may result in death. It may also be noticed that the Doctor in his statement has not even stated that the injury caused by accused was sufficient in ordinary course of nature to cause death. 7. Looking to all these facts and circumstances we are of the opinion that it was not an incident which could be said to be premeditated. The occurrence has taken place as a result of dispute about settling of account of tea shop run by accused with deceased Pratap which culminated in giving a lathi blow by the accused on head of the deceased. From the statement of Sumer Singh the person whose presence on the site cannot be doubted and in the background in which the story has been narrated in the F.I.R. and has been confirmed during the trial, does not rule out the possibility that only single blow has been rendered by the accused on the deceased person. 8. The fact that only one injury is caused and no other injury has been given to the deceased also tends us to hold that intention of causing death cannot be attributed reasonably to the accused and the incident was part of one single happening, ruling out any premeditation or intention to kill. 9. In these circumstances it must be held that though accused is responsible for causing death of Pratap but the prosecution has not been able to make out a case beyond Part II of Section 304 of the Indian Penal Code. 10. Accordingly, we partly allow this appeal, convert the conviction of the appellant from under Section 302 to Part II of Section 304 of the Indian Penal Code and sentence him to rigorous imprisonment of five years. The sentence of fine is maintained, for failure to pay the fine the appellant shall further undergo two months simple imprisonment.Appeal allowed partly. *******